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Harper & Row revisited

By Rebecca Tushnet

The Supreme Court's decision in Harper & Row v. Nation seemed to put even minimal quotation from unpublished works at risk. But has that been borne out in practice, at least with respect to quotation from prepublication works, where there is the real possibility of a "scoop"? I recall some controversy/threatening words over early reviews of the final Harry Potter book, but it seems to me that the principle of the case is not deterring major media, at least when they have acquired a copy of the book at issue by finding an inadvertent early release. It happened with Sarah Palin's book, and now with Game Change, a book about the 2008 campaign. The incentive to sell copies/ads seems to be enough to induce news organizations to take their chances.

On the one hand, this suggests that chilling effects imposed by copyright can be fought by sufficient other incentives to speak. But on the other, the real chilling effect of Harper & Row is on quotations from non-prepublication works--works the author or copyright owner has no interest in allowing to be published. Academic and other book publishers, who do not have the same news cycle incentives, are incredibly leery of fair use quotation from that much larger category of unpublished works. And it's there that Harper & Row has the worst effects, because it chills the dissemination of information that would not otherwise be made available.

So Harper & Row may have done little to stop the scooping it condemned, while constraining valuable speech of other types.

Full post as published by 43(B)log on January 10, 2010 (boomark / email).